About this topic
This topic explains the stages through which a crime passes, the elements that must be present for a complete crime, the stage at which criminal law steps in, the special cases where even preparation is punished under the B.N.S., and the three inchoate crimes: attempt, criminal conspiracy and abetment.
Three situations test where the law steps in. Each is resolved in the final section.
File one: Farhan, a student, fails an exam and writes in his private diary a plan to set fire to his professor's car. He shows no one and does nothing more. A roommate reports it.
File two: In a rented room in Bhopal, police find five men with face masks, knives and the night-shift timetable of a petrol pump's cash counter. They planned to rob it on Saturday.
File three: At a crowded bus stand in Kanpur, a pickpocket slips his hand into a passenger's pocket. It is empty.
Question: who has committed an offence?
Stages of a crime
A planned crime passes through four stages. An easy way to remember them is Think, Tool up, Try and Triumph.
| Memory label | Legal name of the stage |
|---|---|
| Think | Intention |
| Tool up | Preparation |
| Try | Attempt |
| Triumph | Accomplishment |
Sudden or careless crimes may skip some of these stages. The central question is: at which stage does the law step in?
Elements of a crime
The elements of a crime can be pictured as four warning lights on a car dashboard. A crime is complete only when all four lights glow.
- The doer (a human being or person)
- The mind (mens rea)
- The deed (actus reus)
- Harm (injury)
1. The doer
Traditionally, the doer is a human being whom the law can hold answerable. Section 2(26) of the B.N.S. widens this idea:
"person" includes any company or association or body of persons, whether incorporated or not.
2. The mind: mens rea
Mens rea means the guilty mind. It may take the form of:
- intention, or
- knowledge, or
- for some offences, rashness or negligence.
3. The deed: actus reus
Actus reus is the act or illegal omission that carries the guilty mind into the world.
The maxim actus non facit reum nisi mens sit rea joins mens rea and actus reus: a deed does not make a person guilty unless the mind is guilty too.
4. Harm: injury
Section 2(14) of the B.N.S. defines injury:
"injury" means any harm whatever illegally caused to any person, in body, mind, reputation or property.
A false rumour that ruins a trader's name is also injury, because harm to reputation is covered.
Liability at each stage
Stage 1: Intention (Think)
At this stage only two elements are present: the doer and the mind. The law never punishes this stage, for two reasons:
- A plan locked in the head cannot be proved.
- It hurts nobody.
Stage 2: Preparation (Tool up)
At this stage the doer gathers tools, and the deed element begins to appear faintly. Generally, preparation is still not punished, for two reasons.
- Preparation is ambiguous. The same preparatory acts may have an innocent explanation.
- Locus poenitentiae. The law keeps an exit door open, because until the decisive step the person can still turn back. This is the space for repentance.
A person buying a ladder, gloves and a torch may be planning a burglary, or may simply be repairing a roof.
Locus poenitentiae means the space for repentance. Since a person can still turn back before the decisive step, mere preparation is generally not punished.
Preparation that is punishable
For some targets, the law refuses to wait and punishes preparation itself. The main provisions fall into three families.
Family 1: Offences that guard the nation
Section 149 (preparing to wage war against the Government of India):
Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.
Section 154 (depredation on territories of a State at peace with India): This provision guards peace with other countries. Depredation means plundering raids.
Whoever commits depredation, or makes preparations to commit depredation, on the territories of any foreign State at peace with the Government of India, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of any property used or intended to be used in committing such depredation, or acquired by such depredation.
Section 113(3) (terrorism): Terrorism joins this family.
Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
Family 2: Offences that guard trust in money and documents
Section 181 (instruments or material for counterfeiting):
Whoever makes or mends, or performs any part of the process of making or mending, or buys or sells or disposes of, or has in his possession, any machinery, die, or instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any coin, stamp issued by Government for the purpose of revenue, currency-note or bank-note, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 180 (possession of the fake itself):
Whoever has in his possession any forged or counterfeit coin, stamp, currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
The Explanation to Section 180 saves innocent holders:
If a person establishes the possession of the forged or counterfeit coin, stamp, currency-note or bank-note to be from a lawful source, it shall not constitute an offence under this section.
Section 339 (possession of a forged document):
Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 337 of this Sanhita, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 338, shall be punished with imprisonment for life, or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine.
| Section 337 documents | Section 338 documents |
|---|---|
|
|
| Possession under Section 339: up to 7 years and fine | Possession under Section 339: imprisonment for life, or up to 7 years, and fine |
Family 3: Offences that guard the public from gangs
Dacoity is robbery by five or more persons acting together.
Section 310(4) (preparation for dacoity):
Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 310(5) (assembling for dacoity): This reaches the mere gathering.
Whoever is one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
Section 111(3) (organised crime):
Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees.
Summary of punishable preparation
| Family | Section | What is punished | Punishment |
|---|---|---|---|
| Guarding the nation | 149 | Collecting men, arms or ammunition, or otherwise preparing to wage war against the Government of India | Imprisonment for life, or up to 10 years, and fine |
| Guarding the nation | 154 | Committing or preparing to commit depredation on territories of a foreign State at peace with the Government of India | Up to 7 years, fine and forfeiture of property |
| Guarding the nation | 113(3) | Conspiring, attempting, advocating, abetting, advising, inciting or knowingly facilitating a terrorist act or any act preparatory to it | Not less than 5 years, extendable to imprisonment for life, and fine |
| Guarding money and documents | 181 | Making, mending, dealing in or possessing machinery, dies, instruments or material for counterfeiting | Imprisonment for life, or up to 10 years, and fine |
| Guarding money and documents | 180 | Possessing forged or counterfeit coin, stamp, currency-note or bank-note, intending its use as genuine | Up to 7 years, or fine, or both |
| Guarding money and documents | 339 | Possessing a forged document or electronic record, intending its use as genuine | Depends on whether the document falls under Section 337 or Section 338 |
| Guarding the public from gangs | 310(4) | Making preparation for dacoity | Rigorous imprisonment up to 10 years and fine |
| Guarding the public from gangs | 310(5) | Being one of five or more persons assembled to commit dacoity | Rigorous imprisonment up to 7 years and fine |
| Guarding the public from gangs | 111(3) | Abetting, attempting, conspiring, knowingly facilitating, or any act preparatory to organised crime | Not less than 5 years, extendable to imprisonment for life, and fine of not less than five lakh rupees |
Stage 3: Attempt (Try)
At this stage the deed element is fully present. The doer has stopped getting ready and has started the offence itself. Only the harm element is missing.
Here the law steps in, because:
- the danger is real, and
- the guilty mind shows in conduct.
Stage 4: Accomplishment (Triumph)
At this stage all four elements are present, and the person answers for the full offence.
| Stage | Elements present | Liability |
|---|---|---|
| Intention (Think) | Doer and mind | Never punished |
| Preparation (Tool up) | Doer and mind; deed only faintly | Generally not punished; punished only for special targets |
| Attempt (Try) | Doer, mind and deed; harm missing | Usually punished |
| Accomplishment (Triumph) | Doer, mind, deed and harm | Full offence |
Inchoate crimes
Crimes caught between the start and the finish are called inchoate.
The word comes from the Latin inchoare, meaning to begin. Literally, it means to fasten the strap that ties a plough to the ox's yoke: work has started, but no furrow is ploughed yet.
The B.N.S. groups all three inchoate crimes in Chapter 4, titled "Of abetment, criminal conspiracy and attempt".
Memory aid for the three inchoate crimes:
- The hand that falls short: attempt
- The minds that meet: criminal conspiracy
- The push from behind: abetment
Attempt (Section 62)
Some offences have their own attempt provision, for example attempt to murder in Section 109. Where there is no such express provision, Section 62 applies:
Whoever attempts to commit an offence punishable by this Sanhita with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Sanhita for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
Essentials of Section 62
- An attempt to commit an offence punishable with imprisonment for life or imprisonment, or to cause such an offence to be committed.
- Some act done towards the commission of the offence in such attempt.
- No express provision in the B.N.S. for punishing that particular attempt.
Punishment under Section 62
- Imprisonment of any description provided for the offence, up to one-half of imprisonment for life, or one-half of the longest term provided for the offence; or
- such fine as is provided for the offence; or
- both.
If the offence carries up to ten years, the attempt carries up to five years.
Offences punishable only with fine fall outside Section 62, because it applies only to offences punishable with imprisonment for life or imprisonment.
Criminal conspiracy (Section 61)
Definition: Section 61(1)
When two or more persons agree with the common object to do, or cause to be done,
- an illegal act; or
- an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Proviso:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation:
It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Essentials
- Two or more persons.
- An agreement with a common object.
- The object is to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means.
- Where the agreement is not one to commit an offence, some act besides the agreement must be done by one or more parties in pursuance of it.
An agreement to commit an offence is itself a criminal conspiracy and needs nothing more. Any other agreement (for example, to do a legal act by illegal means) needs some act besides the agreement, done by one or more parties in pursuance of it.
Punishment: Section 61(2)
| Target offence | Punishment for the conspirator |
|---|---|
| Punishable with death, imprisonment for life, or rigorous imprisonment of two years or more | Punished as if he had abetted that offence, unless the B.N.S. expressly provides for the punishment of that conspiracy |
| Any other criminal conspiracy | Up to six months, or fine, or both |
Abetment (Sections 45 and 46)
Definition: Section 45
A person abets the doing of a thing, who
- instigates any person to do that thing; or
- engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
- intentionally aids, by any act or illegal omission, the doing of that thing.
Three modes of abetment
- Instigation
- Conspiracy, followed by an act or illegal omission in pursuance of it and in order to the doing of that thing
- Intentional aiding, by an act or illegal omission
Explanations to Section 45
- Explanation 1 (instigation): A person who voluntarily causes or procures a thing to be done, or attempts to do so, by wilful misrepresentation or by wilful concealment of a material fact which he is bound to disclose, instigates it.
- Explanation 2 (aiding): Doing anything before or during the act in order to make it easier, and thereby making it easier, is aiding.
Why abetment is inchoate: Section 46, Explanation 2
To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Abetment is complete even if the act abetted is never committed, or the effect needed to make up the offence is never caused. That is why it is an inchoate crime.
The three inchoate crimes compared
| Point | Attempt | Criminal conspiracy | Abetment |
|---|---|---|---|
| Memory aid | The hand that falls short | The minds that meet | The push from behind |
| B.N.S. provision | Section 62 (general); specific provisions such as Section 109 | Section 61 | Sections 45 and 46 |
| Core idea | An act done towards the commission of the offence that falls short | An agreement of two or more persons to do an illegal act, or a legal act by illegal means | Instigation, conspiracy or intentional aiding |
| Key rule | Punishable with up to one-half of the longest term (or of imprisonment for life), or fine, or both; offences punishable only with fine are outside Section 62 | An agreement to commit an offence needs nothing more; punished as abetment for serious target offences, otherwise up to six months, or fine, or both | Offence complete even if the act abetted is not committed or the requisite effect is not caused |
Applying the law: the three files
| File | Stage reached | Result |
|---|---|---|
| Farhan's diary plan | Intention (Think) | No offence committed. |
| Five armed men in Bhopal | Preparation (Tool up), but for a target the law guards early | Liable under Section 310(4) (preparation for dacoity) and Section 310(5) (assembling for dacoity). |
| Pickpocket in Kanpur | Attempt (Try) | Guilty of attempt; the empty pocket does not save him. |
The second illustration to Section 62: A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.
Quick revision
- Intention (Think) is never punished.
- Preparation (Tool up) is punished only for special targets.
- Attempt (Try) is usually punished.
- Accomplishment (Triumph) brings liability for the full offence.
